Appeal of CTB’s stub street decision dismissed

In 20 minutes, the fate of attorney David Konick’s appeal against the Commonwealth Transportation Board was settled. Rappahannock County Circuit Court Judge Jeffrey W. Parker ruled last Friday (May 20) in favor of the CTB, dismissing Konick’s and his co-appellants’ claim that the board illegally removed the stub end of Middle Street from its secondary-road system. Again, Parker ruled that Konick (along with co-appellants Marian Bragg, Christine Smith and Timothy and Mary Lou Pagano) did not have standing to bring a complaint against the Inn at Little Washington and the town.

The group’s complaint, filed last December with the circuit court, alleged that relevant traffic data were improperly ignored in the decision by the CTB, the governing body of the Virginia Department of Transportation (VDOT). The suit was in response to the Oct. 27, 2015, CTB decision to end VDOT’s 21-year-old maintenance agreement, effectively clearing the way for the Inn to continue planned improvements on the 171-foot stub end of Middle west of Main, a stretch the Washington town council first deeded to the Inn at Little Washington in 2013 as part of a joint “Town Center Beautification” project by the town, the Inn and Trinity Episcopal Church — and which became the subject of a previous Konick lawsuit early in 2015.

Arguments in this latest session centered on statutes concerning the processes for discontinuance and abandonment of public roads by the state. Konick claimed that the statutes do not specify who can bring an action. He read what he described as the operative sentence of one statute, “From the finding of the Board, an appeal shall lie to the circuit court of the county in which such highway, landing, or railroad crossing is located….” He claimed the language “doesn’t specify who has the right to appeal. We do have the right to appeal and ask that the [motion to dismiss] be denied.”

But CTB attorney Jeff Allen and Tom Junker, attorney for the Inn at Little Washington, disputed Konick, claiming another statute specifies that only government entities and landowners with property abutting the street have standing — in this case, the Inn and the town of Washington.

Konick also argued that the vacation of the street was illegal because the street was abandoned before a public hearing could be held. “In fact,” he said, “[the CTB] decided to have a public hearing after we petitioned for one. The CTB granted our request. They could have said no,” suggesting that this meant he and the others did have standing.

Before pronouncing his ruling, Parker addressed the language of the statutes. “These statutes are relatively clear. It’s rare to have code sections perfectly written and drafted. There is no question in the view of the court about standing — only abutting land owners and the town have standing. The [appellants] don’t have standing. It’s as black and white as it can be. There’s no confusion on standing. I don’t want to drag this out. The court dismisses the appeal with prejudice. Let’s let this have a merciful conclusion.”

In a later email, Konick responded to the ruling, “No one challenged the allegation that the CTB acted with complete disregard for the provisions of the Town’s own Comprehensive Plan and VDOT’s own traffic count statistics, both of which are required by state law to be taken into consideration before any part of the highway system is discontinued. If the opponents truly believed that what happened here would withstand judicial scrutiny, they obviously would have let the judge rule on the merits of the case instead of hiding behind procedural technicalities and let the court hear and decide the case based on the evidence. I think it is unfortunate they chose not to do so.”

In October 2015, Parker also found that Konick hadn’t the standing to challenge in a separate circuit court suit the legality of the town and Inn’s 2013 beautification project. On April 5 of this year, Konick appeared in the Virginia Supreme Court for oral arguments on his appeal of Parker’s ruling. The Supreme Court has not yet ruled.

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